1 Order/Acceptance
These Terms and Conditions establish the rights, obligations, and remedies of Blast Cleaning Technologies (the “Buyer”) and the seller named in the Order (the “Seller”) that apply to all purchase orders, including this Order, issued by Buyer for the purchase of Seller’s products and/or services (collectively, the “Products”). The Order and these Terms and Conditions contain the entire agreement of the parties relating to the Products. These Terms and Conditions shall prevail over any of Seller’s additional or different terms or conditions, whether contained in Seller’s acknowledgement, invoice, or in any other document or communication, and regardless of whether or when Seller has provided such other terms or conditions. Buyer hereby expressly objects to and rejects any such additional or different terms and conditions provided by Seller, which additional terms and conditions shall be ineffective. The Order is limited to and conditional upon Seller’s acceptance of these Terms and Conditions exclusively. Seller’s acceptance of these Terms and Conditions shall be conclusively presumed by Seller’s fulfillment of this Order or commencement thereof, or by Seller’s return to Buyer of an acknowledgment of this Order. Within five business days after the receipt of the Order, Seller shall confirm and accept the Order in writing, by electronic transmittal, or by performance. If the Order is a blanket order, Seller will ship only those quantities released in writing by Buyer. Any specification, drawings, notes, instructions, engineering notices, technical data or supplemental items set forth in the Order shall be deemed incorporated herein by reference as though fully set forth herein.
2 Price and Payment Terms
The price of the Products is the price stated in the Order (the “Price”). By acceptance of this Order, Seller warrants that the Price, allowances and other terms and conditions applicable to this Order are at least as equal as any currently offered by Seller to any other customer with similar quality, quantity and delivery requirements. If more favorable prices, allowances or other terms and conditions are hereafter offered by Seller to any other customer prior to completion or delivery of the Products hereunder, Seller shall immediately notify Buyer and any such prices, allowances and other terms and conditions shall apply to this Order. Prices are stated in United States dollars unless otherwise indicated on the Order. Payment of all properly invoiced amounts from Buyer shall be due to Seller within 60 days after the later of (i) Buyer’s receipt of all the Products or (ii) Buyer’s receipt of an invoice from Seller, or in accordance with the payment terms set forth in the Order. Buyer shall not be penalized due to any delay in payment or due to exercise of any of its rights under this Order. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Point, and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer
3 Delivery and Title
Seller shall comply with any packaging requirements provided by Buyer, or if there are no packaging requirements, in a manner sufficient to ensure that the Products are delivered in undamaged condition. Seller shall include a packing list with each delivery of Products that contains at least the following items: 1) the applicable Order number; 2) Seller’s part number; 3) Buyer’s part number; 4) quantity shipped; and 5) date of shipment. Products must be shipped FOB to the destination and address specified in the applicable Order (the “Delivery Point”). Costs associated with cartage or packing of Products shall be borne exclusively by Seller, unless agreed upon beforehand by Buyer in writing. All expenses incurred by Seller’s failure to ship Products in accordance with the shipping terms set forth in the Order shall be the responsibility of the Seller. Title to Products passes to Buyer upon delivery of the Products at the Delivery Point. Seller shall not retain any security interest in Products after the passage of title to Buyer, and shall deliver the Products free of all liens and encumbrances. Seller shall deliver the Products on the date (the “Delivery Date”) and in the quantities set forth in the Order, unless otherwise agreed to by Buyer in writing. If Seller believes that delivery of the Products will be delayed, Seller shall immediately inform Buyer of the anticipated delay, indicate the cause of delay, and use its best efforts to cure the anticipated delay. If Seller fails to deliver the Products in full on the Delivery Date, Buyer may terminate this Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Products on the Delivery Date. Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Products.
4 Invoicing
Itemized invoices bearing the applicable Order number must be mailed by Seller to Buyer on the day of shipment. Invoices subject to cash discount should be mailed on the day they are dated. If such invoices are not mailed on the day they are dated, then the discount period will begin on the day the invoice is received by the Buyer’s Accounts Payable Department. Failure to attach Bill of Lading or Express Receipt to Seller’s invoice will delay payment and the discount period will begin when the documents are received. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than three days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth above. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Order notwithstanding any such dispute.
5 Inspection and Acceptance
Buyer, Buyer’s representatives, and Buyer’s customers may inspect the Products and components of Products at any commercially reasonable time prior to, during, and after delivery of the Products to the Delivery Point. Seller will allow escorted access to its facilities relating to the Products and will obtain from its subcontractors the right for Buyer, Buyer’s representatives, and Buyer’s customers to have access to its subcontractor’s facilities to facilitate the inspection. Seller shall inspect the Products prior to delivery to ensure the Products meet all requirements of the order and these terms and conditions. If an inspection by any party reveals the Products or components of Products are nonconforming, defective or fail to comply with all requirements of this Order and these Terms and Conditions, Buyer may reject all or any portion of the Products. If Buyer rejects any portion of the Products, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Order in its entirety; (b) accept the Products at a reasonably reduced price; or (c) reject the Products and require Seller to repair or replace the affected Products or otherwise rectify the nonconformance, defect or failure as requested by Buyer. If Buyer requires replacement of the Products, Seller shall, at its expense, within ten days, replace the nonconforming or defective Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Products. If Seller fails to timely deliver replacement Products, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for default. Buyer’s, Buyer’s representative’s, and Buyer’s customer’s inspection of the Products and components of Products, or any of their approval of drawings, designs, or other documents, will not limit Seller’s obligation to strictly comply with the requirements of the order and these terms and conditions.
6 Warranty; Replacement
Seller warrants to Buyer that all Products furnished by Seller and any services or installation relating thereto pursuant to this Order will: (i) be free of any defects in design, workmanship, or material, (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer in the Order, and (iii) be free and clear of all liens, security interests or other encumbrances. These warranties survive any delivery, inspection, acceptance or payment of or for the Products by Buyer. In the event of a defect in the Products or noncompliance with the foregoing warranties, the Seller shall take all necessary action within ten days and at Seller’s expense, replace or repair the defective or nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Products to Buyer, Should the Seller fail to correct any such defect within twenty days after Seller has been given written notice of the defect during the warranty period, the Buyer may proceed, at Seller’s expense, to perform the necessary corrective work. This warranty shall also inure to the benefit of Buyer’s customer or the user of the goods. The foregoing warranty is conditioned upon prompt notification by the Buyer and reasonable substantiation that the Products have been maintained and operated in accordance with any specific written requirements provided by the Seller to Buyer.
7 Changes
Buyer may at any time make changes in shipping and packing instructions, quantities, drawings, designs, specifications, place of delivery and/or delivery schedules, for which an appropriate adjustment to the Order shall be made. Specifications for Products may be changed only by written agreement between the Parties.
8 Termination for Default
Buyer may terminate all or any part of this order by giving written notice of default to Seller, if Seller: (a) refuses or fails to deliver the Products within the time specified set forth in the Order; (b) fails to comply with any of the provisions of this Order or so fails to make progress as to endanger performance hereunder; or (c) becomes insolvent or subject to proceedings under any law relating to bankruptcy, insolvency or the relief of debtors. Should Seller default under either (a) or (b), Seller shall have ten (10) days to cure such default before Buyer may terminate this Order. Should Seller fail to cure such default, Buyer may terminate this Order, and Seller shall be solely liable for Buyer’s excess direct costs to complete the order.
9 Termination for Convenience
Buyer may terminate this Order at any time for its convenience, in whole or in part, in which event, Buyer’s sole obligations shall be to reimburse Seller for (a) those Products actually shipped and accepted by Buyer up to the date of termination, and (b) costs incurred by Seller for unfinished goods, which are specifically manufactured for Buyer and which are not standard products of the Seller, as of the date of termination. In no event shall Buyer be responsible for loss of anticipated profit nor shall reimbursement exceed the order value of the actual quantity of goods that are on firm release by Buyer.
10 Stop Work Order
Buyer may at any time by written notice to the Seller stop all or any part of the work called for by this Order. Upon receipt of such notice, the Seller shall take all reasonable steps to minimize the incurrence of costs during the period of work stoppage. Buyer may subsequently either cancel the stop work order resulting in an equitable adjustment in the delivery schedule and/or the price, or terminate the work in accordance with the provisions of this Order.
11 Confidential Information
All non-public, confidential or proprietary information of a party, including but not limited to, plans, specifications, schematics, working models, samples, patterns, designs, drawings, documents, data, and other documents, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Order is confidential (collectively, “Confidential Information”). Confidential Information shall be used by the Receiving Party solely for the purpose of performing this Order and may not be disclosed or copied unless authorized in advance by the Disclosing Party in writing. Upon the Disclosing Party’s request, the Receiving Party shall promptly return all documents and other materials received from the Disclosing Party. The Disclosing Party shall be entitled to injunctive relief for any violation of this Section. Each Party remains the sole and exclusive owner of the Confidential Information it discloses to the Receiving Party hereunder.
12 Risk of Loss
Seller assumes the following risks: (a) all risks of loss or damage to all Products, goods, work in process, materials and other things until the delivery and inspection of all the Products as herein provided; (b) all risks of loss or damage to third persons and their property until the delivery and inspection of all the Products as herein provided; (c) all risks of loss or damage to any property received by Seller from or held by Seller or its supplier for the account of Buyer, until such property has been delivered and inspected as herein provided. Any patterns, dies, molds, jigs, fixtures and other property of every description furnished to Seller by Buyer, or specifically paid for by Buyer, shall (a) be the exclusive property of Buyer and subject to removal by Buyer upon completion of this Order, (b) shall be used only in filling this Order, (c) be held in strict confidence by Seller and (d) be held by Seller at its sole risk.
13 Patent/Intellectual Property Infringement
Seller represents and warrants to Buyer that the sale or use of the Products hereunder does not and will not infringe on any U.S. or foreign patent, copyright, trademark, trade dress or other intellectual property rights (collectively, “IP Rights”) of a third party. Seller shall indemnify, defend and hold harmless Buyer and any Indemnitee (defined below) against any and all Losses (defined below) arising out of or in connection with any claim that Buyer’s or Indemnitee’s use of the Products infringe or misappropriates the IP Rights of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent. Upon Buyer’s receipt of any cease and desist letters, demands, service of process or complaints, it will promptly notify Seller. Buyer will cooperate with Seller in defense of any such claim, suit, or action. If Buyer determines that Seller has failed to undertake the defense as required by this paragraph or that representation by counsel retained by Seller would be inappropriate because of actual or potential differences in interest, Buyer may retain its own counsel and Seller will compensate Buyer for all reasonable attorneys’ fees and other costs and expenses incurred by Buyer as a result thereof.
14 Insurance and General Indemnification
Seller shall indemnify, hold harmless and defend Buyer and each of its shareholders, directors, officers, employees, agents, affiliates and subsidiaries, and each of their heirs, successors or assigns (collectively, “Indemnitees”), from and against any third party claims, losses, injury, suits, actions, judgments, liabilities, damages, costs or expenses (including reasonable attorneys’ fees) and other costs of enforcing any right to indemnification hereunder (collectively, the “Losses”) arising out of or occurring in connection with (a) a defect of any kind in the Products purchased from Seller (b) a failure of the Product to conform to the specifications, drawings or other descriptions furnished to Seller, or (c) Seller’s gross negligence or willful misconduct. Seller shall not enter into any settlement without Buyer’s prior written consent. Seller shall carry comprehensive general liability insurance, including contractual and product liability coverage, with $1,000,000 per occurrence and in the aggregate. Seller shall, at the request of the Buyer, supply certificates evidencing such coverage.
15 Compliance with Laws
Seller shall comply with all applicable laws, rules, orders, treaties, and regulations related to the production, manufacture, installation, sale, use, import, and export of all Products, to the extent not inconsistent with United States law. Seller shall comply with all applicable environmental laws, health, and human safety laws, including without limitation, all laws prohibiting child labor, human trafficking, and slavery.
16 Force Majeure
Neither party shall be liable to the other for any delay or failure in performing its obligations under this Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include only the following: acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Order. If a Force Majeure Event prevents Seller from carrying out its obligations under this Order for a continuous period of more than 15 business days, Buyer may terminate this Agreement immediately by giving written notice to Seller.
17 Limitation of Liability
To the extent not prohibited by applicable law, in the event of a breach of any provision of this Order or Terms and Conditions by Buyer (including without limitation by reason of failure to make payment when due or accept delivery of the Products), Buyer shall be liable only for the direct and documented costs actually incurred by Seller. In no event shall Buyer’s liability exceed the purchase price of the goods to be purchased under the order. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, STATUTORY DAMAGES, LIQUIDATED DAMAGES, EXEMPLARY DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, OR LOSS OF USE; PROVIDED, HOWEVER, THAT NOTHING SHALL AND 14 AND/OR SELLER’S LIABILITY FOR FRAUD OR WILLFUL EXCLUDE OR LIMIT SELLER’S LIABILITY UNDER SECTIONS 13 MISCONDUCT.
18 Governing Law/Dispute Resolution
This Order and acceptance thereof shall be a contract made in the state enforce or arising from, this agreement shall of Wisconsin and governed by the law thereof. Any suit to only be filed by Buyer or Seller in a state or federal court for Waukesha County in Wisconsin. The prevailing party in any suit will be entitled to rec over its reasonable and costs.
19 Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Order or these Terms and Conditions shall be const rued as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
20 Assignment
Seller shall not assign, transfer or otherwise delegate this agreement without the prior written consent of Buyer. The terms conditions of this agreement shall inure to the an d benefit of and be binding upon the respective successors and assigns of the Parties
21 Severability
If any provision of this agreement is invalid, illegal, or unenforceable in any unenforceability of that provision will not affect jurisdiction, for any reason, the invalidity, illegality, or any other provision of this agreement, but the invalid provision will be substituted with a valid provision that most closely approximates the intent and the economic effect of the enforceable to the maximum extent permitted in the jurisdiction.
22 Entire Agreement
This agreement contains the entire agreement between Buyer and Seller with respect to Products and supersedes all other written or oral agreements relating to Products. Any additional terms set forth on any other document or form of Seller, including order acknowledgements and invoices, are material alterations of this contract and are expressly rejected. The terms of this agreement cannot be modified unless done so in a writing signed by the Buyer. A waiver by a party of any breach or default by the other not a waiver of any other breach or default, and no course of dealings between the parties will modify this agreement.
If there are questions or concerns regarding our Terms & Conditions, please contact us.